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Argument recap: The law of portages

Wednesday’s oral argument in PPL Montana v. Montana featured three seasoned advocates.  Petitioner PPL Montana was represented by Paul Clement, a former Solicitor General in the Bush II Administration (who will also argue the challenge to the constitutionality of the Affordable Care Act later this Term); Montana was represented by Gregory Garre, another former Solicitor General from the Bush II era; and the United States was represented by Ed Kneedler, the senior career Deputy Solicitor General.  Each advocate managed to articulate his theory of the case, which counts as success in the chaotic environment created by the current hyper-active bench. 

At stake was ownership of the bed of three rivers in Montana.  All agreed that the relevant inquiry was whether the rivers in question were navigable in fact in 1889, when Montana joined the Union.  The key disagreement, as it turned out, was over what counts as a sufficiently arduous portage to defeat navigability.


Paul Clement argued that the key was whether the boat was physically lifted out of the river.  If the boat had to be lightened and pulled over some rapids, that kind of portage would not defeat navigability.  But if the boat was lifted out of the river and carried overland, then the segment of the river requiring this kind of portage was not navigable.

Ed Kneedler largely agreed with this analysis, but he offered an important qualification: the overland portage had to be sufficiently lengthy that someone other than the state could make “sensible use or control” of the strip of riverbed requiring portage.  A short portage of five or ten feet should be regarded as de minimis and would not defeat state ownership.

Gregory Garre argued that portages of any length do not defeat navigability; indeed, they only confirm that the river was being used for commerce and hence was navigable.  Only if the obstruction was so great that portaging was not attempted would navigation and hence state ownership be defeated.  In short, three advocates — and three theories about what counts as a navigability-defeating portage.

The Justices’ reactions to the conflicting views about portages fell into three camps.  In the view of Justices Alito and Scalia, it was incoherent to say that a river segment over which a boat cannot pass is “navigable.”  Justice Scalia further offered that he could see no basis for a de minimis exception.  They were clearly with Clement.

Justice Sotomayor was troubled by the difficulty of distinguishing between obstructions that are sufficiently extensive to deny the state title and obstructions that are de minimis. This concern may have been shared by the Chief Justice, who offered the following hypothetical: suppose I take a flight from Washington to Tokyo; could it be said that I walked part way because I had to transfer from one plane to another in San Francisco?  His point seemed to be that portaging, even when it entails hauling a boat overland, does not defeat the understanding that one is engaged in a continuous course of commercial travel.  This would suggest that the Chief Justice and Justice Sotomayor were troubled by the line-drawing required by the federal government’s position, and might prefer either the Clement view or the Garre view on grounds of ease of administration.

Justice Breyer, and possibly also Justice Kagan, seemed primarily concerned with how much “wrecking” the Court would do if it ruled one way or another.  “If I start with a practical premise of not wanting to interrupt expectations,” Justice Breyer asked, “what’s the status quo?” “I looked at the briefs and I can’t get a very good picture.” This would suggest that they could go either way, if it could be determined that one view or the other was is more consistent overall with existing understandings about title.

Justices Kennedy and Ginsburg were harder to read.  Justice Kennedy was clearly taken with the idea that navigability means different things for purposes of establishing title than it does for purposes of determining the scope of regulatory authority – a key premise of the Clement-Kneedler positions.  But it was unclear how he felt about portages.  Justice Ginsburg was primarily puzzled about why the United States did not intervene in the proceedings below, given that its title to the submerged land was at issue.  This too provides no clue as to her views on the merits.

There seems little doubt that the case is headed back to the Montana courts for further proceedings; for example, Justice Sotomayor said at one point that she had “serious questions about whether the court properly granted summary judgment.”  And when Chief Justice Roberts asked Garre for his “best piece of evidence” that the Madison River was navigable at statehood, Garre responded that there was some evidence of activity by “fur trappers and the like” but admitted it was “not extensive.”  Garre then fell back on the position that the Madison was “susceptible” to use as a navigable river at statehood.  The Montana Supreme Court’s decision is clearly vulnerable on this point.

Recommended Citation: Thomas W. Merrill , Argument recap: The law of portages, SCOTUSblog (Dec. 9, 2011, 11:34 AM),